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Sentencing enhancement only requires that the conduct involve sadistic or masochistic conduct regardless who it is directed against

In U.S. v Scheels the Defendant pled guilty to one count of production of child pornography and one count of receipt of child pornography and received a 600-month sentence of imprisonment. In calculating his sentencing guideline range, the district court imposed a four-level enhancement under 2G2.1(b)(4) of the U. S. Sentencing Guidelines. This guidelines provision requires the imposition of a four-level enhancement where a defendant’s “offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” The defendant conceded that the pornography he produced does depict sadistic or masochistic conduct and admitted that it contained among other things images involving whipping and bondage. But the defendant argued that the enhancement should not apply to him because the sadistic or masochistic conduct in the pornography was directed at him not the child victim.

The court of appeals disagreed with his argument and upheld the enhanced sentence. The issue centered around whether the phrase “involve…sadistic or masochistic conduct” means the conduct must be directed against the victim.   The court rejected this argument and found that the language only requires that the conduct only involve sadistic or masochistic conduct. Looking to the plain and ordinary meaning of the word “involve” when used as a verb, the court found the dictionary meaning is “to have as a necessary feature or consequence; entail,” and “ to have within or as a part of itself.”   Furthermore, the relevant conduct provision of the guidelines includes “all acts and omissions committed…commanded, induced, procured or willfully caused by the defendant.” Her a part of the production offense to which the defendant pled guilty was inducing or commanding a minor to participate in sadistic or masochistic conduct during the course of sexual activity. His offense involved such conduct regardless of whether the conduct was directed at him or the minor victim.

The defendant’s argument against the enhancement failed partly because there were no cases on point supporting his position. He did cite cases which he argued case doubt on this interpretation of 2G21(b)(4) including U.S. v Hall 312 F.3d 1250 (11th Cir. 2002) which contained a statement to the effect that a photograph is sadistic within the meaning of section 2G2.2(b)(3) when it depicts the subjection of a young child to a sexual act stand for the proposition that material depicting an act that would have to be painful. The court found that those cases merely stand for the proposition that material depicting sadistic or masochistic conduct directed towards the child is sufficient to warrant the application of the enhancement, not that it is necessary. The cases cited by the defendant concerned material that contained sadistic or masochistic conduct directed at a minor, it is pure dicta to suggest the court would not have applied the enhancement if the violence were directed against towards the defendant.   The court made clear that statements in an federal criminal appellate court opinion that are not fitted to the facts or that extend further than the facts of that case or that are not necessary to the decision of an appeal given the facts and circumstances of the case are dicta.

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